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Court orders Zulu King’s trust to pay back millions

Ingonyama land leases stripped people living on ancestral land of their customary rights.
The Pietermaritzburg High Court has declared the Minister of Rural Development and Land Reform to have breached her duty to respect, protect and promote the constitutional right to property of people living on Ingonyama Trust land. Image: Shutterstock
  • In a ruling that affects five million people in KwaZulu-Natal, the Pietermaritzburg High Court has ruled the Ingonyama Trust’s land leases unlawful.
  • The Zulu King’s trust has been ordered to refund millions it collected on the leases.
  • The court found that the leases were contrary to customary law and undermined the rights to tenure of people living on ancestral land.
  • The court also declared the Minister of Rural Development and Land Reform to have breached her duty to protect trust-land residents.

In a significant victory for more than five million people in KwaZulu-Natal living on land owned by the Ingonyama Trust, the Pietermaritzburg High Court has ruled that the Trust’s policy of forcing people to sign leases “extracting money from them” is unlawful and unconstitutional.

The court has ruled that all the leases are invalid and has ordered the trust to refund all monies received through the leases. The amount will run to millions of rands.

The court also declared the Minister of Rural Development and Land Reform to have breached her duty to respect, protect and promote the constitutional right to property of trust-land residents.

Read the judgment

Until an alternative system of recording customary and informal rights is implemented, the minister is to reinstate the system of “Permission to Occupy” and report back to the court every three months on progress.

The case against the trust was launched by the Council for the Advancement of the South African Constitution (CASAC), the Rural Women’s Movement and several individuals – mothers, factory workers, pensioners, farmers and fathers – who were personally affected by the lease policy.

The Legal Resources Centre (LRC) represented the applicants and it was argued In December last year before Judges Isaac Madondo, Jerome Mnguni and Peter Olsen.

In its papers, CASAC said the Ingonyama Trust had undermined the rights to tenure of people living on ancestral land by forcing them to sign leases, contrary to customary law and the system of “permission to occupy land”.

It argued that the Trust had no right to do this. It weakened the rights of the occupants, many of whom had been living on their land for decades.

If they did not pay rent, they could lose the land and any improvements they made were for the benefit of the Trust and the King.

It was argued that residents received no information about the consequences of signing these leases. They were not informed that they were, in effect, watering down their existing rights and completely undermining their security of tenure to the land.

There were also reports of community leaders forbidding women from signing the leases, insisting that they be signed by men, some of whom had no connection to the land.

The Trust argued that the system of “permission to occupy” was an apartheid legacy, was unconstitutional and the leases were aimed at uplifting people.

It said people were not being forced to sign lease agreements but were “invited to enter into them”.

In the judgment penned by Judge Madondo, the court lambasted Jerome Ngwenya, chairperson of the board of the Trust, for his “unfortunate and saddening” response to the court challenge.

“He regards it as an affront to the institution of the ubukhosi rather than as the exercise by the applicants of the right to seek protection of constitutional rights and protecting their property rights.”

The judge expressed his displeasure at Ngwenya’s “scathing attack” on CASAC’s executive director Lawson Naidoo and customary law expert Professor Thandabantu Nhlapho.

“I do not understand this application to be directed at the King in his person, but it is brought against him in his capacity as the trustee of the trust. Oddly enough Mr Ngwenya has not provided any evidence in support of his assertion that the applicants intention is to ‘strip the Zulu nation of its identity,” the judge said.

On the merits of the matter, the judge said it was common cause that the Trust had no authority to issue and withdraw or dispose of the rights vested in “Permission To Occupy” holders. That power was vested in the Minister.

“On its own frolic, in April 2007, the board decided to stop issuing PTOs and the existing Permission to Occupy rights should be converted to lease agreements … The long-term lease agreements are not consistent with customary rights to land,” said the judge.

Judge Madondo said people could be dispossessed of the land if they did not pay rent, without consideration for their vested customary law interests and entitlements.

He noted evidence from affected people that they were forced to sign the leases, that they were threatened that they would lose their land, and that refusal would amount to “turning against his Majesty, the King of the Zulus”.

“The conduct of the Trust and the Board has been subversive of the objects of the Trust Act in that the residents have been reduced to mere tenants, having no rights beyond that of permissive occupation and use and the Trust has effectively become a landlord rather than a trustee.”

The judge said the minister had failed to exercise oversight over the Trust, and the court believed a supervisory order was necessary.

The Trust was ordered to pay the applicants’ costs.

© 2021 GroundUp. This article was first published here.

COMMENTS   29

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This is a big step in the right direction. The old feudal system of the traditional leaders is incompatible with a modern democratic society and should be dismantled. It is also time for the so-called Permission to Occupy system to be replaced with proper title deeds to enable the present occupiers to uplift themselves by selling it or using it as collateral for bank loans. If there is a real hunger for land as the government alleges then here is a place to start.

Indlala ibanga ulaka.

Yebo, kodwa votela cANCer futi.

Ek het nog nooit in my lewe ANC gestem nie.

And Goodwill carried on like this for how long????????/

Goodwill indeed.

Put some respect on the late King’s name.

I’d bet my bile duct you would have never said that to his face.

That’s a tough bet, Brak. Maybe you should reconsider ? If you lose you will die a very unpleasant death within ~10 days. Obstructive jaundice is no joke with the bile in your gallbaldder having no way of reaching your duodenum. You will be in excruciating pain and the colour of your skin likea gold bar, itching all over your body. Wager one of your parts you have two of ie an ear, an eye or cojones. Much more realistic and safer should you lose.

Why?…. he and his successor aren’t my king and I object to my taxes being used to prop up this self serving feudal gang of sponging overlords.

It’s called class, Bob, and you clearly have none.

lucky my bile duct has been made unserviceable. Gone!!

And I certainly would have called him that, prancing around in his leopard skin how must I know he is “royalty”. Encouraging xenophobia hardly great behavior.

He would’ve died waiting before the king granted him an audience. So your bile duct is safe (for now).

Definitely! EWC will fail the test of constitutionalism – remember said constitution is a mix of Dutch and English law designed to protect the gains and losses of previous injustices and apartheid. So it will definitely fail, no argument there – just like it did in Zim. Commercial Farmers Union farmers also felt they were invisible for the longest time, placing their faith in their laws, as you do here. Until the natives decided to throw those laws away and of course the rest is history. 2 decades later for some of these farmers, the realities of the highly capitalist US and EU societies without cheap labour from natives to raise their kids for them have been tough. To this day they still fight for compensation which everyone knows will never come. So yes, you can be guaranteed that constitutionally and / or procedurally, it will definitely fail for a long time but SA is a boiling pot of the haves and have nots separated against a racial background traceable to past injustices. The have-nots are increasing both in number and their poverty (thanks to COVID, corruption etc), fast approaching a critical point where enough will have absolutely nothing and will be angry enough so that all that the situation will need is an opportunistic popular figure. May not be in your time – maybe your kids or grandkids time but it will come. Fighting EWC is a losing battle, it’s just postponing the inevitable. If only you could learn from history (inclusive of European history) or your own nearby neighbour’s history!

This protection of property rights by our Courts will be repeated by the Courts ( and in particular the Constitutional Court) if E W C becomes law. Property rights are so fundamental that EWC will not pass the Constitutional test. There are some clauses of the Constitution that are not legally changeable. For instance ( and this has happened in our Courts) all so called Coloured people were denied the vote by a two thirds majority in Parliament and the Constitution amended. Would the Constitutional Court allow that? I don’t think so. Same with EWC. It is a non starter.

Meanwhile it’s enough to keep investors away!

Big fat chance of this happening, the isiZulu nation is about 28% of the SA population. The current regime will NEVER risk these votes by adhering to the court ruling. It only would’ve been enforced if the king was white.

Maybe they should just breed less and stop taking our ‘colonial’ medicine and go back to using mud and bark as medicine? Even things out a tad

There is no power of the court of in the SA law enforcement or justice system that will have the resources or guts to try and enforce them.
Mini civil war a coming !! Buy popcorn !!!

Why do we have so many kings in South Africa?

It is very expensive for the Tax Payer and they serve NO good purpose!

One law for everyone.

Yes.

When you read the history books it seems it is just a collective of cattle thieves. They survive on plunder.

Every time a chief dies the great wife’s firstborn son takes over. BUT the tribe also splits as the righthand wife’s firstborn runs off with some of the tribe. Oh and he is then a “King” or something.

It serves a purpose, it allows the kings to abuse, steal, burn, rape, kill, steal livestock and generally walk all over their “subjects”.

Knowing the tardy manner in which these guys pay back money I suspect that this repayment, court order or not, will never happen.

And the string of agriculture ministers who simply closed their eyes to the abuse while it was according to the law, the job of these ministers to oversee these land rights. Disgusting!

Eyes were closed because they had no clue as to what they were doing, as of now they are still clueless. In the meantime the rural areas are very unfriendly and not an attractive proposition to any budding farmer. You have to be born there to enjoy it and its hardships.

Imagine Julius telling his wife they are moving to Vosburg or Calvinia or Midelpos.

I know most readers of this site skew to a certain demographic, but from reading these comments you’d think we were living in Europe.

You need to get over yourselves. Even if you don’t fully understand it, you are for all intents and purposes living in a Zulu country.

Yes, it’s called South Africa, and yes there are other tribes, but you better believe that Zulus will always be the dominant culture in our part of the world. I could include the other Nguni tribes (Xhosa, Swazi and Ndebele) but I’m not going to, for argument’s sake.

If that means we have to pay for the upkeep of the Zulu royal family, then so be it. It is a pittance compared to all the money stolen by the Afrikaners and the ANC.

Personally, I think one of the smartest things the Afrikaners and NP ever did was setting up the Ingonyama Trust in the dying days of apartheid. If it were up to me, I would have ceded the entire KZN province over to the Zulus, but that’s a discussion for another day.

Let the Zulu people decide how they want to handle this situation. It’s not up to us as descendants of European colonisers. That’s the reality we find ourselves in. No amount of moaning on the internet will change that.

Then get off the internet, put on your leopard skin (what a disgrace that is anyway), go pick yourself a nice 14 year old at the reed dance and go build a lovely hut in the hills. Whilst you are there, please use NOTHING designed or invented by us Europeans and please expect a life expectancy of around 54, heading south. Just so you know, his death was a very, very good day for all impoverished and downtrodden rural poor of Zulu descent. He was a feudal gangster and misogynist wastrel

Gosh, that’s somewhat lacking in manners and ability to debate….

You certainly have a point, Skurwe Brak. Generally speaking…

And that’s why it’s always so intriguing, if not amusing, when us brand of European South Africans launch into our usual summer lament of “Oh No! The beeches are FULL of blacks again!”

People are funny….

End of comments.

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